Settlement reached in Phenix Hall accessibility lawsuit

A rendering of an accessible Phenix Hall by Sheerr McCrystal Palson Architecture that property owner Mark Ciborowski filed in federal court. A similar design will be constructed as part of Concord's Main Street renovations to make Phenix Hall accessible.
Courtesy

A lawsuit over accessibility to Phenix Hall on Main Street has been resolved.

The settlement agreement between property owner Mark Ciborowski and the Disabilities Rights Center hinges on the city’s plans to redesign Main Street and build a ramped sidewalk into the Phenix Hall storefronts, which include the Works Bakery Cafe. The Disabilities Rights Center, which filed the federal lawsuit in 2011 on behalf of three wheelchair users, will receive about $32,000 from Ciborowski as part of the agreement.

“The core of this case was really to provide access . . . and that’s what we ended up with, so we’re happy,” said Aaron Ginsberg, an attorney for the Disabilities Rights Center.

There are now two steps between the sidewalk and the Phenix Hall storefronts. Ciborowski, whose family owns several downtown buildings, renovated Phenix Hall in 2010. The lawsuit was filed the following September, after renovations left the building inaccessible to wheelchair users. The 1893 building is on the National Register of Historic Places. The Americans with Disabilities Act, which requires that buildings be made accessible when renovated, also requires that the historic integrity of a building be maintained.

Jack Crisp, Ciborowski’s attorney, said a reasonable solution would not have been possible without the city’s Main Street project, which will significantly widen the sidewalk in front of Phenix Hall and close Phenix Avenue, the street next to the building. The city’s project, known as the Concord Complete Streets Improvement Project, will reduce traffic from four lanes to two lanes with a crossable median, widen sidewalks, add public art and landscaping and improve accessibility. It is expected to be complete in 2015.

“What made it possible was the Complete Streets project,” Crisp said. “The city committed itself to making all the buildings on Main Street accessible, and my client was willing to work with the city to see that happen, as was the DRC.”

The settlement, reached after a nine-hour mediation meeting last month, was signed and filed yesterday at the federal court in Concord.

The agreement requires that Phenix Hall become accessible through Concord’s Main Street renovations by the end of 2014, said Richard Cohen, executive director of the Disabilities Rights Center. If the city’s project falls through, Ciborowski must renovate the building himself.

Crisp said Ciborowski is glad the building will be made accessible, but that he has always felt the lawsuit was unjust.

“He and his family have always tried to make accessibility a top priority in all the projects they do around town, and I think if you can look at them you can see that,” Crisp said. “And where there was such enormous obstacles here and where the historic significance of the building was also at issue, I think he was very frustrated that no one was trying to balance those priorities and figure out a balanced solution.”

City officials worked with Ciborowski to develop the plans, City Engineer Ed Roberge told the city’s heritage commission at a meeting Thursday, where he presented designs to offer accessibility into most of the storefronts along Main Street.

The city’s designs include sloping the sidewalk slightly upward from between Phenix Avenue and the clock tower, which will move from Eagle Square to a large bump-out in front of Phenix Hall. That ramp will lead to a platform and accessible entrances into Phenix Hall’s storefronts. The platform will extend in front of the building, with space for outdoor seating and steps down from the other sides.

“I think it really balances the need – accessibility – as well as trying to create some sort of architectural flair while respecting the historical character of the building,” Roberge told the heritage commission.

A $4.71 million federal grant will cover part of the city’s more than $10 million Main Street project, and Roberge said this week that the work to make buildings accessible will be made at no cost to building owners. He said city officials are working with the federal government to include accessibility improvements in the grant and overall project budget.

“If we pull this off, which we’re confident that we will now, this is probably one of the first examples of using federal highway funds like this,” Roberge told the heritage commission.

Roberge said 17 of 18 inaccessible storefronts, including those in Phenix Hall, will be made accessible as part of the project. The 18th storefront – the entrance to Trilogy Hair Studio at 134 N. Main St. – does not yet have an accessible design, but Roberge said officials are still trying to find a solution.

Cohen, who has been working since last fall to advocate for accessibility in the Main Street project, said yesterday that he is pleased so many downtown buildings will be made accessible. That outcome is “even more than we expected when we filed this suit,” he said.

“We had a very strong court ruling in the Phenix Hall case in April,” Cohen said, referring to a judge’s decision that Ciborowski was required to do everything possible to accommodate people with disabilities when he renovated Phenix Hall in 2010. “And I think that fact, coupled with our advocacy efforts . . . and some very receptive city officials, the Complete Streets project began to incorporate accessibility to all storefronts, not just Phenix Hall.”

Phenix Hall has three storefronts along North Main Street: The Works Bakery Cafe, the League of New Hampshire Craftsmen and a vacant storefront. The lawsuit was filed against the stores as well as the landlord. The nonprofit that runs the League of New Hampshire Craftsmen’s reached a settlement last year, agreeing to support all plans to make Phenix Hall accessible in exchange for removal from the case.

Because the city was planning to include accessibility in its Main Street project, Crisp said he felt the lawsuit would be dismissed before it went to trial. He filed a court motion in July, asking that it be dismissed or put on hold.

But the Disabilities Rights Center needed a guarantee that the renovations would occur even if the Main Street project fell through, Ginsberg said.

The center also will receive a payment, though Cohen said the money spent on the lawsuit “far exceeds” the $32,000 settlement.

“But we were able to achieve the goal we sought,” he said. “We’re more than happy to have foregone all the other fees that we might have otherwise been entitled to.”

Cohen said yesterday that the outcome is a “win-win” for everyone involved, because the lawsuit and Main Street project led to major accessibility improvements for Concord.

“It will truly be an inclusive downtown, and hopefully a model for the rest of the nation,” he said.

According to the drawing of the main st. reconstruction, they're going to move the tower clock that's owned by the NH Historical Society to that location. Why would you move that clock which marks the entrance to the NH Historical Society's entrance? Would it be yet another faux-paus by the redesign Main Street planners? Just curious...